EXHIBIT H
COOPERATION AGREEMENT
This COOPERATION AGREEMENT (this "Agreement"), dated
February 14, 2001, is between Westfield America Management Limited ACN 072
780 619 ("WAML"), in its capacity as responsible entity and trustee of
Westfield America Trust ARSN 092 058 449, a public unit trust constituted
under the laws of Australia ("WAT"), and Westfield Holdings Limited ACN 001
671 496, an Australian public company ("WHL").
WHEREAS, WAML, in its capacity as responsible entity and
trustee of WAT, holds legal title to shares of common stock, par value $.01
per share ("Common Stock"), and shares of preferred stock (the "WAT
Preferred Shares") of Westfield America, Inc., a Missouri corporation (the
"Company");
WHEREAS, WHL indirectly and beneficially owns shares of
Common Stock ("WHL Common Shares") and shares of preferred stock of the
Company;
WHEREAS, in connection with the Merger Agreement (as defined
below), WAML, as responsible entity and trustee of WAT, proposes to
commence a tender offer (the "Offer") for all of the outstanding shares of
Common Stock of the Company, subject to the terms and conditions set forth
in the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, Merger Sub (as
defined below) will merge with and into the Company, with the Company as
the surviving corporation (the "Merger");
WHEREAS, WAML holds legal title to 940,000 shares of Series
A Cumulative Redeemable Preferred Stock, par value $.01 per share (the
"Series A Preferred Shares"), and 270,000 shares of Series B Cumulative
Redeemable Preferred Stock, par value $.01 per share (the "Series B
Preferred Shares");
WHEREAS, WHL indirectly owns 277,778 shares of Series D
Cumulative Convertible Redeemable Preferred Stock, par value $.01 per share
(the "Series D Preferred Shares");
WHEREAS, WAML intends to subordinate the Series A Preferred
Shares and Series B Preferred Shares to the Series G Cumulative Convertible
Redeemable Preferred Stock to be issued to Security Capital Preferred
Growth Incorporated and the Amended Series D Preferred Shares (as defined
below);
WHEREAS, WAML intends to convert the WAT Preferred Shares,
other than the Series A Preferred Shares and the Series B Preferred Shares,
into shares of Common Stock or capital stock substantially the same as
Common Stock of the Surviving Corporation (as defined below);
WHEREAS, WAML intends to seek WAT Member (as defined below)
approval to the transactions contemplated hereby, including, without
limitation, (i) the entry into the Series H Option Deed (as defined below);
(ii) the issuance of the Series H Options (as defined below) to the
Surviving Corporation (as defined below); (iii) the transfer of the Series
H Options by the Surviving Corporation (as defined below) to WAI; (iv) the
issuance of ordinary units in WAT to WAI (as defined below) in accordance
with the Series H Option Deed; (v) the entry into the Series I Option Deed
(as defined below); (vi) the issuance of the Series I Options (as defined
below) to WCI (as defined below) and WAI; (vii) the issuance of ordinary
units in WAT to WCI and WAI in accordance with the Series I Option Deed;
(viii) the Capital Raisings (as defined below); (ix) the amendment of the
Investor's Agreement referred to in Section 6.3; and (x) the giving of any
financial benefits to WHL and its affiliates which may otherwise arise
out of transactions in connection with the Offer and Merger (collectively,
the "WAT Member Approval");
WHEREAS, WHL intends to cause WAI, as a WAT Member, and any
other entity it controls which is a WAT member, to vote all of their units
in WAT in favor of the Capital Raisings;
WHEREAS, WHL, subject to obtaining WHL Member Approval (as
defined below), intends to cause WAI to accept the transfer of the Series H
Options from the Surviving Corporation;
WHEREAS, WHL, subject to obtaining WHL member approval,
intends to cause WCI and WAI to accept the grant of the Series I options;
WHEREAS, WAML and WHL desire to set forth their agreement
concerning the Offer and the Merger as well as the recapitalization of the
Surviving Corporation following the consummation of the Offer and the
Merger;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, the following terms used in
this Agreement shall have the meanings specified below:
"Agreement" shall have the meaning set forth in the
introductory paragraph to this Agreement.
"Amended Series D Preferred Shares" shall mean the Series D
Cumulative Convertible Redeemable Preferred Shares, par value $.01 per
share, the preferences and rights of which are set forth in the amendment
to the Series D Certificate of Designation.
"Amendment" shall have the meaning set forth in Section 4.1.
"Articles of Incorporation" shall mean the Restated Articles
of Incorporation of the Company, as amended.
"Capital Raisings" means:
(a) the issue of fully paid ordinary units in WAT to raise
$A450,225,000;
(b) the issue of redeemable convertible preference units in
WAT to raise $A100,000,000; and
(c) the underwriting of WAT's distribution reinvestment plan
and the issue in accordance with the underwriting agreement of new ordinary
units in WAT to raise $A240,000,000 to, among other things, fund the
redemption of the redeemable convertible preference units described in (b).
"Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
"Company" shall have the meaning set forth in the recitals
to this Agreement.
"Governmental Body" shall mean any domestic or foreign
state, county, city or other political subdivision, administrative,
governmental or regulatory body, agency or authority.
"Law" shall mean any law, statute, order, writ, injunction,
decree, ordinance, award, stipulation, judicial or administrative doctrine,
rule or regulation enacted by any Governmental Body.
"Material Adverse Effect" shall mean any event,
circumstance, change, effect or development that, individually or in the
aggregate with all other events, circumstances, changes, effects or
developments, is or could reasonably be expected to be materially adverse
to the assets, properties, condition (financial or otherwise) or results of
operations of the Company.
"MGBCL" shall mean the Missouri General and Business
Corporation Law.
"Merger" shall have the meaning set forth in the recitals to
this Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger to be entered into among the Company, WAML, in its capacity as
responsible entity and trustee of WAT, and Merger Sub.
"Merger Sub" shall mean Mall Acquisition Corp., a Delaware
corporation.
"Offer" shall have the meaning set forth in the recitals to
this Agreement.
"Offer Affiliates" shall mean WAI and WCI.
"Offer Price" shall have the meaning set forth in Section
2.1.
"Order" shall mean any award, decision, injunction,
judgment, order, ruling or verdict entered, issued, made, or rendered by
any court, administrative agency, or other Governmental Body or by any
arbitrator.
"Series A Preferred Shares" shall have the meaning set forth
in the recitals to this Agreement.
"Series B Certificate of Designation" shall mean the
Certificate of Designation of the Series B Preferred Shares, dated May 19,
1997.
"Series B Preferred Shares" shall have the meaning set forth
in the recitals to this Agreement.
"Series D Certificate of Designation" shall mean the
Certificate of Designation of the Series D Preferred Shares, dated August
10, 1998.
"Series D Preferred Shares" shall have the meaning set forth
in the recitals to this Agreement.
"Series H Option" means series H options to acquire ordinary
units in WAT in accordance with the terms of the Series H Option Deed.
"Series H Option Deed" means the deed a copy of which is
Exhibit D to this Agreement.
"Series I Option" means Series I options to acquire ordinary
units in WAT in accordance with the terms of the Series I Option Deed.
"Series I Option Deed" means the deed a copy of which is
Exhibit E to this Agreement.
"Subordination" shall have the meaning set forth in Section
5.1.
"Surviving Corporation" shall have the meaning set forth in
Section 3.2.
"Tendered Shares" shall have the meaning set forth in
Section 2.1.
"Trust Deed" means the deed (as amended from time to time)
dated 28 March 1996 establishing WAT, and known as the constitution of WAT.
"WAI" shall mean Westfield American Investments Pty.
Limited, an Australian corporation.
"WAML" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"WAT" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"WAT Member Approval" shall have the meaning set forth in
the recitals to this Agreement.
"WAT Members" means the registered holders of interests in
WAT.
"WAT Preferred Shares" shall have the meaning set forth in
the recitals to this Agreement.
"WCI" shall mean Westfield Corporation, Inc, a Delaware
corporation.
"WHL" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"WHL Member Approval" shall have the meaning set forth in
Section 5.3.
"WHL Members" means the registered holders of shares in WHL.
"WHL Common Shares" shall have the meaning set forth in the
recitals to this Agreement.
ARTICLE II
THE OFFER
Section 2.1 The Offer. As promptly as practicable, WAML
agrees to commence a tender offer to purchase all of the outstanding shares
of common stock of the Company (the "Tendered Shares"), other than the
shares owned by the Company, WAML and the Offer Affiliates at the time of
the Offer, at a price set forth in the Merger Agreement (the "Offer
Price").
Section 2.2 Conditions to Consummation of the Offer. WAML
and WHL acknowledge that WAML's obligations to commence the Offer and to
accept for payment and to pay for any Tendered Shares validly tendered on
or prior to the expiration of the Offer and not withdrawn shall be subject
to the conditions to be set forth in the definitive Merger Agreement.
Section 2.3 WHL Shares. WHL agrees to cause both WAI and WCI
not to tender the WHL Common Shares in the Offer.
ARTICLE III
THE MERGER
Section 3.1 The Merger. WAML and WHL acknowledge that the
Merger shall be undertaken pursuant to the terms of Section 351.458 of the
MGBCL. WHL agrees to the terms and conditions of the Merger as set forth in
the Merger Agreement, including, without limitation, the Articles of Merger
attached thereto. WHL agrees to cause WAI and WCI to vote in favor of the
Merger.
Section 3.2 Effect of the Merger. WAML and WHL acknowledge
that, following the Merger, the Company shall continue as the surviving
corporation (the "Surviving Corporation") and the separate corporate
existence of Merger Sub shall cease.
Section 3.3 Covenants and Conditions to Consummation of the
Merger. WAML and WHL acknowledge that the consummation of the Merger shall
be subject to certain covenants and conditions to be set forth in the
definitive Merger Agreement.
ARTICLE IV
AMENDMENT OF TERMS OF SERIES D PREFERRED SHARES
Section 4.1 Amendment to Series D Certificate of
Designation. Subject to the conditions of this Agreement and in accordance
with the MGBCL, as soon as reasonably practicable after the consummation of
the Merger, WHL agrees to cause WAI to approve the amendment to the Series
D Certificate of Designation (the "Amendment"), with the terms
substantially in the form set forth in Exhibit A hereto.
ARTICLE V
CAPITAL RAISINGS, SERIES H OPTIONS AND SERIES I OPTIONS
Section 5.1 Capital Raisings. As soon as reasonably
practicable after the date of this Agreement, WAML agrees to call a meeting
of WAT Members to consider and, if thought fit, approve amongst other
things, the Capital Raisings to assist in the funding of the Offer. WHL
agrees to cause WAI, as a WAT Member, and any other entity it controls
which is a WAT member, to vote all of their units in WAT in favor of the
resolution to approve the Capital Raisings.
Section 5.2 Series H Options and Series I Options. (a) As
soon as reasonably practicable after the date of this Agreement, WAML
agrees to call a second meeting of WAT Members, to be held promptly after
the close of the Offer, to consider and if thought fit, approve, among
other things; (i) the entry into the Series H Options; (ii) the issuance of
the Series H Options to the Surviving Corporation; (iii) the transfer of
the Series H Options by the Surviving Corporation to WAI; (iv) the issuance
of ordinary units in WAT to WAI in accordance with the Series H Option
Deed; (v) the entry into the Series I Option Deed; (vi) the issuance of the
Series I Options to WCI and WAI; (vii) the issuance of ordinary units in
WAT to WCI and WAI in accordance with the Series I Option Deed; (viii) the
amendment of the Investor's Agreement referred to in Section 6.3; and (ix)
the giving of any financial benefits to WHL and its affiliates which may
otherwise arise out of transactions in connection with the Offer and
Merger.
(b) Subject to receipt of WAT Member Approval, following the
completion of the Merger, WAML shall cause the Surviving Corporation to
transfer the Series H Options to WAI.
Section 5.3 Acceptance of Series H Options and Special I
Options. As soon as reasonably practicable after the date of this
Agreement, WHL agrees to call a meeting of WHL Members, to be held promptly
after the close of the Offer, to consider and if thought fit, approve,
among other things: (i) the acceptance of the transfer of the Series H
Options from the Surviving Corporation to WAI; (ii) the grant of the Series
I options to WCI and WAI; (iii) the exercise of the Series H Options and
Series I Options in accordance with the terms of the Series H Option Deed
and Series I Option Deed, respectively; (iv) the amendment of the
Investor's Agreement referred to in Section 6.3; and (v) the giving of any
financial benefits to WAT which may otherwise arise out of transactions in
connection with the Offer and Merger (the "WHL Member Approval").
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Amendment to Series A Preferred Shares and
Series B Preferred Shares. As soon as reasonably practicable after
consummation of the Merger, WAML agrees to cause (i) the subordination of
the Series A Preferred Shares and Series B Preferred Shares to the Amended
Series D Preferred Shares of the Surviving Corporation, and (ii) the
amendment of the terms of the Series A Preferred Shares and Series B
Preferred Shares to allow the holders thereof to convert such preferred
shares into capital stock substantially the same as Common Stock of the
Surviving Corporation. In connection therewith, WAML agrees to approve the
amendments to the Articles of Incorporation with respect to the Series A
Preferred Shares and the Series B Certificate of Designation, substantially
in the form attached hereto as Exhibit B and Exhibit C, respectively.
Section 6.2 Conversion of WAT Preferred Shares. As soon as
reasonably practicable after consummation of the Merger, WAML agrees to
convert the WAT Preferred Shares into Common Stock or capital stock
substantially the same as Common Stock of the Surviving Corporation.
Section 6.3 Amendment of Investor's Agreement. As soon as
reasonably practicable after consummation of the Merger, WAML and WHL agree
and shall cause the Surviving Corporation to amend the non-competition
provisions contained in the Investor's Agreement, dated May 21, 1997, among
the Company, WAML, Perpetual Trustee Company Limited, WCI, WAI and WHL. The
effect of those amendments will be that, if the Surviving Corporation has
considered an investment or other business opportunity and decided not to
pursue that opportunity, WHL and its subsidiaries will be permitted to take
advantage of that opportunity.
Section 6.4 Termination of Registration Rights Agreement. As
soon as reasonably practicable after consummation of the Merger, WAML shall
cause the Surviving Corporation and WHL agrees to terminate the
Registration Rights Agreement, dated May 21, 1997, between the Company and
WHL.
Section 6.5 Reasonable Best Efforts. Each party will use its
reasonable best efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary, proper or advisable under
applicable Laws to consummate the transactions contemplated by this
Agreement.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF
THE CONTEMPLATED TRANSACTIONS
Section 7.1 Conditions to WHL's Obligations. Other than
WHL's obligations under Sections 2.3, 3.1, 5.3, 6.5 and 10, which shall be
binding on WHL upon execution of this Agreement, WHL's obligation to
consummate the transactions contemplated in this Agreement is subject to
the following conditions:
(a) The Merger shall have been consummated in accordance
with the terms and conditions of the Merger Agreement.
(b) The Series A Preferred Shares and Series B Preferred
Shares shall have been subordinated to the Amended Series D Preferred
Shares of the Surviving Corporation.
(c) There shall not be in effect any Order or Law
prohibiting the consummation of the transactions contemplated by this
Agreement or permitting such consummation only subject to any condition or
restriction that has or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company.
(d) There shall not be any proceeding pending or threatened
before any Governmental Body that would prohibit or reasonably be expected
to prohibit the consummation of the transactions contemplated by this
Agreement.
(e) WAT shall have obtained the WAT Member Approval.
(f) WHL shall have obtained the WHL Member Approval.
Section 7.2 Conditions to WAML's Obligations. Other than
WAML's obligations under Sections 5.1, 5.2, 6.5 and 10 which shall be
binding on WAML upon execution of this Agreement, WAML's obligation to
consummate the transactions contemplated in this Agreement is subject to
the following conditions:
(a) The Merger shall have been consummated in accordance
with the terms and conditions of the Merger Agreement.
(b) There shall not be in effect any Order or Law
prohibiting the consummation of the transactions contemplated by this
Agreement or permitting such consummation only subject to any condition or
restriction that has or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company.
(c) There shall not be any proceeding pending or threatened
before any Governmental Body that would prohibit or reasonably be expected
to prohibit the consummation of the transactions contemplated by this
Agreement.
(d) WAT shall have obtained the WAT Member Approval.
(e) WHL shall have obtained the WHL Member Approval.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Merger Agreement. In the event of
termination of the Merger Agreement by any party thereto, this Agreement
shall become void and have no effect, without any liability or obligation
on the part of WAML or WHL.
ARTICLE IX
LIMITATION OF LIABILITY
Section 9.1 Limitation of Liability of WAML.
(a) Except as provided in Section 9.1(b), as WAML enters
into this Agreement only in its capacity as responsible entity and trustee
of WAT, WAML is liable under this Agreement only up to the extent to which
it is actually indemnified out of the assets of WAT.
(b) WAML is only personally liable to the extent that it is
not actually indemnified out of the assets of WAT as a result of it being
fraudulent, negligent or in breach of trust.
(c) If WAML is not personally liable, the parties other than
WAML must not xxx WAML personally or seek to wind it up to recover any
outstanding money, and WAML is entitled to plead this clause as a bar to
the taking of any such proceedings.
(d) Nothing contain in Section 9.1(a) limits the right of
any party to bring action for performance by WAML or limit any party's
right to recover damages from the assets of WAT to the extent that WAML is
liable under this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Assignment. Neither party may assign its rights
or obligations under this Agreement without the prior written consent of
the other party.
Section 10.2 Waiver. Any term or provision of this Agreement
may be waived in writing at any time by the party which is entitled to the
benefits thereof.
Section 10.3 Amendment; Modification. No provision of this
Agreement may be amended or modified unless such amendment or modification
is in writing and signed by the parties hereto intending to be bound
thereby.
Section 10.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors (including persons taking by novation) and assigns.
Section 10.5 Further Assurances. Each party hereto shall do
all such further acts and execute, acknowledge, deliver and file all such
other instruments and documents as may be necessary or desirable to give
effect to and carry out the transactions contemplated by this Agreement.
Section 10.6 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
including, without limitation, Section 5-1401 of the New York General
Obligations Law.
Section 10.7 Entire Agreement. This Agreement and all other
agreements referred to in this Agreement constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
Section 10.8 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all
of which shall, taken together, be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WESTFIELD AMERICA MANAGEMENT
LIMITED in its capacity as responsible
entity and trustee of Westfield America
Trust
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Director
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WESTFIELD HOLDINGS LIMITED
an Australian public company
By: /s/ Xxxxxxx Xxxx Xxxxx
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Name: Xxxxxxx Xxxx Xxxxx
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Title: Director
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